Citation Nr: 0409098
Decision Date: 04/07/04 Archive Date: 04/16/04
DOCKET NO. 99-01 897 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to service connection for a low back
disorder.
2. Entitlement to service connection for a psychiatric
disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The veteran served on active duty from February 1974 to
February 1976.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a March 1997 rating decision of the St.
Louis, Missouri, Department of Veterans Affairs (VA) Regional
Office (RO). The RO denied service connection for a low back
disorder and a psychiatric disorder.
The veteran relocated to Indiana and jurisdiction of his
claim was assumed by the RO in that state.
FINDINGS OF FACT
1. Competent evidence of a nexus between the post service
low back disorder and service, to include manifestations of
such to a compensable degree within one year following the
veteran's discharge from service, is not of record.
2. Competent evidence of a nexus between the post service
psychiatric disorder, diagnosed as major depressive disorder
and schizophrenia, to include manifestations of such to a
compensable degree within one year following the veteran's
discharge from service, is not of record.
CONCLUSIONS OF LAW
1. A low back disorder, diagnosed as degenerative joint
disease, degenerative disc disease, and spondylosis, was not
incurred in or aggravated by service nor can it be presumed
to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112,
1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (2003).
2. A psychiatric disorder, diagnosed as major depressive
disorder and schizophrenia, was not incurred in or aggravated
by service nor can it be presumed to have been incurred in
service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A,
5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law
redefines the obligations of VA with respect to the duty to
assist and includes an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA or filed before
the date of enactment and not yet final as of that date.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002); see Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed. Cir.
2002) (holding that only section four of the VCAA, amending
38 U.S.C. § 5107, was intended to have retroactive effect).
The final rule implementing the VCAA was published on August
29, 2001, see 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001),
and is codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2003). These regulations, likewise, apply to any
claim for benefits received by VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by the VA as of that date.
In this case, VA's duties have been fulfilled to the extent
possible. First, VA must notify the veteran of evidence and
information necessary to substantiate his claim. 38 U.S.C.A.
§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran
was notified of the information necessary to substantiate his
claims for service connection by means of the November 2003
letter, the March 1997 rating decision, the May 1997
statement of the case, and the May 2000 and September 2003
supplemental statements of the case. In the November 2003
letter, the RO told the veteran that the evidence needed to
substantiate his claims was evidence of a disease or injury
that began in service or was made worse during service, a
current disability, and evidence of a relationship between
the current disability and the disease or injury in service.
The RO noted that the third requirement (evidence of a
relationship) usually required a medical opinion. It further
noted that there were diseases that if they became evident
after service then they could be presumed, under specified
circumstances, to have been incurred in service.
As to the claim for service connection for a low back
disorder, in the March 1997 rating decision, the RO stated
that the service medical records showed one complaint of an
injury to the right side of his back but that examination of
the spine at discharge was normal. The RO stated that the
first showing of a low back disorder was more than 20 years
following the veteran's discharge from service. It concluded
that service connection could not be granted because there
was no evidence of a relationship between the post service
back disorder, diagnosed as degenerative disc disease of the
lumbar spine, and service, to include manifestations of such
to a compensable degree within one year of the veteran's
discharge from service. The RO reiterated such findings in
the statement of the case and the supplemental statements of
the case. Thus, the veteran was informed that the evidence
necessary to substantiate his claim for service connection
for a low back disorder was competent evidence of a nexus
between the post service low back disorder and service or
manifestations of degenerative disc disease to a compensable
degree within one year following the veteran's discharge from
service.
As to the claim for service connection for a psychiatric
disorder, in the March 1997 rating decision, the RO stated
that the service medical records were negative for any
psychiatric disability and that a psychiatric examination at
discharge was normal. The RO stated that the first showing
of a psychiatric disorder was 20 years following the
veteran's discharge from service. It concluded that service
connection could not be granted because there was no evidence
of a relationship between the post service psychiatric
disorder, diagnosed as major depressive disorder with
personality disorder, and service, to include manifestations
of such to a compensable degree within one year of the
veteran's discharge from service. The RO reiterated such
findings in the statement of the case and the supplemental
statements of the case. Thus, the veteran was informed that
the evidence necessary to substantiate his claim for service
connection for a low back disorder was competent evidence of
a nexus between the post service psychiatric disorder and
service or manifestations of a psychosis to a compensable
degree within one year following the veteran's discharge from
service.
Based on the above, the Board finds that VA has no
outstanding duty to inform the veteran that any additional
information or evidence is needed to substantiate his claims.
Second, in the same notice, VA must inform the veteran of
which information and evidence he was to provide to VA and
which information and evidence VA would attempt to obtain on
his behalf. In the November 2003 letter, the RO informed the
veteran that it would request all records held by federal
agencies, to include service medical records, military
medical records, and medical records at VA facilities. The
RO stated that it would make reasonable efforts to assist him
in obtaining private records, which would include records at
state or local governments, private doctors or hospitals, and
current or former employers. It told the veteran that as
long as he provided enough information about these records,
VA would assist in obtaining them, but noted that he had the
ultimate responsibility to make sure that all requested
records, not in possession of a federal agency, were
received.
Third, VA must make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. §§ 3.159(c),
(d) (2003). Here, the RO obtained the veteran's service
medical records. The RO also obtained VA treatment record
from facilities in St. Louis, Missouri; Columbia, Missouri;
Jefferson Barracks, Missouri; Atlanta, Georgia; Dublin,
Georgia; Knoxville, Iowa; Iowa City, Iowa; Leavenworth,
Kansas; and Marion Illinois. The veteran had alleged
treatment at private hospitals as well. Records were
received from the Tahlequah Indian Hospital, but the J.P.
Nowata Health Center stated that it had no records pertaining
to the veteran. The veteran was informed of this. In
accordance with the duty to assist, the RO also provided the
veteran with examinations in connection with his claims.
The Board notes that the United States Court of Appeals for
Veteran Claims' (Court) decision in Pelegrini v. Principi,
No. 01-944 (U.S. Vet. App. Jan. 13, 2004) held, in part, that
a VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. In this case, the initial AOJ decision was made
prior to November 9, 2000, the date the VCAA was enacted. VA
believes that this decision is incorrect as it applies to
cases where the initial AOJ decision was made prior to the
enactment of the VCAA and is pursuing further judicial review
on this matter. However, assuming solely for the sake of
argument and without conceding the correctness of Pelegrini,
the Board finds that any defect with respect to the VCAA
notice requirement in this case was harmless error for the
reasons specified below.
In the present case, the rating decision which is currently
on appeal was issued in March 1997. Only after that rating
action was promulgated did the AOJ, in the November 2003
letter, provide notice to the claimant regarding what
information and evidence is needed to substantiate the
claims, as well as what information and evidence must be
submitted by the claimant, and what information and evidence
will be obtained by VA. Because the VCAA notice in this case
was not provided to the veteran prior to the initial AOJ
adjudication denying the claim, the timing of the notice does
not comply with the express requirements of the law as found
by the Court in Pelegrini. While the Court did not address
whether, and, if so, how, the Secretary can properly cure a
defect in the timing of the notice, it did leave open the
possibility that a notice error of this kind may be non-
prejudicial to a claimant.
The Court in Pelegrini found, on the one hand, that the
failure to provide the notice until after a claimant has
already received an initial unfavorable AOJ determination,
i.e., a denial of the claim, would largely nullify the
purpose of the notice and, as such, prejudice the claimant by
forcing him to overcome an adverse decision, as well as
substantially impair the orderly sequence of claims
development and adjudication. Pelegrini, No. 01-944, slip
op. at 13. On the other hand, the Court acknowledged that
the Secretary could show that the lack of a pre-AOJ decision
notice was not prejudicial to the appellant. Id. ("The
Secretary has failed to demonstrate that, in this case, lack
of such a pre-AOJ-decision notice was not prejudicial to the
appellant.")
In light of these two findings on prejudice, the Board finds
that the Court in Pelegrini has left open the possibility of
a notice error being found to be non-prejudicial to a
claimant. To find otherwise would require the Board to
remand every case for the purpose of having the AOJ provide a
pre-initial adjudication notice. The only way the AOJ could
provide such a notice, however, would be to vacate all prior
adjudications, as well as to nullify the notice of
disagreement and substantive appeal that were filed by the
appellant to perfect the appeal to the Board. This would be
an absurd result, and as such it is not a reasonable
construction of section 5103(a). There is no basis for
concluding that harmful error occurs simply because a
claimant receives VCAA notice after an initial adverse
adjudication.
Moreover, while strictly following the express holding in
Pelegrini would require the entire rating process to be
reinitiated when notice was not provided prior to the first
agency adjudication, this could not have been the intention
of the Court, otherwise it would not have taken "due account
of the rule of prejudicial error" in reviewing the Board's
decision. See 38 U.S.C. § 7261(b)(2); see also Conway v.
Principi, No. 03-7072 (Fed. Cir. Jan. 7, 2004) (There is no
implicit exemption for the notice requirements contained in
38 U.S.C. § 5103(a) from the general statutory command set
forth in section 7261(b)(2) that the Veterans Claims Court
shall "take due account of the rule of prejudicial error.")
In reviewing AOJ determinations on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C. § 7104(a), all questions in a matter
which under 38 U.S.C. § 511(a) are subject to decision by the
Secretary shall be subject to one review on appeal to the
Secretary, and such final decisions are made by the Board.
Because the Board makes the final decision on behalf of the
Secretary with respect to claims for veterans benefits, it is
entirely appropriate for the Board to consider whether the
failure to provide a pre-AOJ initial adjudication constitutes
harmless error, especially since an AOJ determination that is
"affirmed" by the Board is subsumed by the appellate
decision and becomes the single and sole decision of the
Secretary in the matter under consideration. See 38 C.F.R.
§ 20.1104. There simply is no "adverse determination," as
discussed by the Court in Pelegrini, for the appellant to
overcome. See Pelegrini, No. 01-944, slip op. at 13.
Similarly, a claimant is not compelled under 38 U.S.C. § 5108
to proffer new and material evidence simply because an AOJ
decision is appealed to the Board. Rather, it is only after
a decision of either the AOJ or the Board becomes final that
a claimant has to surmount the reopening hurdle.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error).
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notice provided to the veteran in November 2003 was
not given prior to the first AOJ adjudication of the claims,
the notice was provided by the AOJ prior to the transfer and
certification of the veteran's case to the Board, and the
content of the notice fully complied with the requirements of
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Following the
letter, the veteran was given 60 days to submit additional
evidence. He did not submit any evidence. He submitted no
evidence following the September 2003 supplemental statement
of the case, where he was also provided 60 days to submit
additional evidence. The claimant has been provided with
every opportunity to submit evidence and argument in support
of his claims, and to respond to VA notices.
Therefore, notwithstanding Pelegrini, to decide the appeal
would not be prejudicial error to the claimant. For the
reasons stated above, the Board finds that the requirements
of the VCAA have been met.
II. Decision
The veteran asserts that he has developed a low back disorder
as a result of an injury he sustained in service. As to his
psychiatric disorder, he asserts that he had attempted
suicide when he was in high school and was diagnosed with
depression following his discharge from service.
The service medical records show that in December 1974, the
veteran was seen for an injury to the right side of his back.
The examiner noted that the veteran complained of pain with
deep breathing or use of muscle. Physical examination
revealed good movements of the back. The examiner stated
that the pain was not extreme. He recommended heat following
exercises.
At discharge, in January 1976, clinical evaluation of the
spine and other musculoskeletal system was normal.
Psychiatric evaluation was normal as well.
A September 1979 VA employee examination report shows that
the veteran denied having a mental disorder or physical
impairment which would interfere with his job as a laundry
worker. A physical examination of the back at that time was
normal. Mental health examination was normal as well. A
January 1982 VA employee examination report shows the same
findings as those made in the 1979 report, including the
veteran denying having a mental disorder or physical
impairment which would interfere with his job as a laundry
worker.
A December 1992 VA outpatient treatment report shows that the
veteran reported feeling pain in his back when lifting boxes.
The examiner stated that x-rays were negative. The diagnosis
was lumbosacral strain.
A July 1993 VA outpatient treatment report shows a
provisional diagnosis of anxiety. The examiner evaluated the
veteran and determined that the veteran had a schizotypal
obsessive compulsive personality disorder.
A March 1996 VA hospitalization summary report shows that the
veteran was diagnosed with depression and a personality
disorder. It was noted that the veteran had presented to the
hospital complaining of depression for a four-to-six-week
period. He stated that it related to his inability to attend
his mother's funeral.
A September 1996 VA hospitalization summary report shows that
the veteran was diagnosed with major depressive disorder and
a personality disorder. The examiner noted that the veteran
had had multiple stressors, such as a legal battle for
wrongful dismissal from his job and his stepson moving into
the house with him and his wife, who was a convicted
murderer.
A February 1997 VA examination report shows that the veteran
reported he would get pain in his back and would sometimes be
unable to get out of bed. He stated he had problems with
anxiety and anger control. The examiner stated that there
was no swelling or atrophy of the musculoskeletal system, but
that there was tenderness at the L5-S1 area. Range of motion
of the lumbar spine was 60 degrees of flexion, 15 degrees of
extension, 25 degrees of lateral flexion, bilaterally, and
45 degrees of rotation, bilaterally. The examiner noted the
veteran complained of pain with forward flexion and lateral
flexion to the left. There was a mild amount of spasm on the
paravertebral musculoskeletal muscles on the left side. The
examiner noted that the veteran had a flat affect and "very
poor eye contact." She stated she felt the veteran had
difficulty controlling his thoughts and maintaining a thought
order, adding that the veteran appeared to be without contact
to reality. She entered diagnoses of major depression, major
personality disorder with schizoid features, and back strain.
A March 1997 VA psychiatric evaluation report shows that the
veteran stated that his current depressive symptoms were not
present while he was in the service and did not begin until
1988, when his stepfather died and one month later he was
charged with domestic violence, convicted of trying to kill
his second wife, and given jail time plus five years
probation. The examiner entered diagnosed of major
depressive disorder and avoidant personality disorder.
An August 1998 VA hospitalization summary report shows that
the veteran was diagnosed with schizophrenia.
In September 2000, the veteran testified at a personal
hearing before the undersigned Veterans Law Judge. The
veteran stated that he was treated for his back one time in
service and that he began having problems with his back
during the period between 1979 and 1981. He stated he worked
in the laundry room at that time. He stated he had been seen
for complaints of back pain at the VA employee medical
facility during that time frame. The veteran testified that
he subsequently worked at the VA hospital in Iowa City
between 1982 and 1991 and was seen nine to 10 times during
that time frame for back pain. The veteran stated he was
working in the housekeeping department. He stated he
believed that x-rays of his spine were taken in 1990 or 1991.
He stated he then went to work at the VA Medical Center in
St. Louis between 1992 and 1996 and was seen for back pain.
The veteran stated he had been seen at private hospitals here
and there for his back pain. He stated that he did not
complain of back pain in service because he was a young
soldier and he decided to work through it.
As to his major depression, the veteran stated that he had
attempted suicide when he was a sophomore or junior in high
school. He acknowledged that there was nothing in the
service medical records to show that he had any problems
during service. He stated that it was in 1988 that he began
being seen for depression. The veteran stated he was treated
for suicidal tendencies, schizophrenia, and depression. When
asked if anyone had attributed his depression to service, the
veteran was unable to remember. The veteran testified that
he traveled during the first three years he got out of
service.
There are numerous VA treatment records that are dated from
1997 to 2003, which confirm current diagnoses of low back and
psychiatric disorders, which will not be reported in detail,
as they only confirm that the veteran has current back and
psychiatric disorders.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection
for a chronic disease, such as arthritis and a psychosis, may
be granted if manifest to a compensable degree within one
year of separation from service. 38 U.S.C.A. §§ 1101, 1112,
1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2003).
Service connection may be granted for any disease diagnosed
after service when all the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2003).
The chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where the evidence, regardless of its date, shows
that the veteran had a chronic condition in service or during
an applicable presumption period and still has such
condition. Such evidence must be medical unless it relates
to a condition as to which, under the Court's case law, lay
observation is competent. Savage v. Gober, 10 Vet. App. 488,
498 (1997). In addition, if a condition noted during service
is not shown to be chronic, then generally a showing of
continuity of symptomatology after service is required for
service connection. 38 C.F.R. § 3.303(b) (2003).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
1. Low back disorder
The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against the
grant of service connection for a low back disorder. The
veteran has alleged that this disability was caused by the
injury he sustained in service. The service medical records
show that he injured the right side of his back in December
1974. However, at separation from service in January 1976,
clinical evaluation of the spine was normal. Additionally,
the veteran has stated that he was seen between 1979 and 1981
for back complaints while working at the VA medical center in
Muskogee, Oklahoma. Those records have been obtained and do
not show complaints of back pain. In fact, he was examined
in September 1979 and January 1982, and physical examination
of the spine was normal. The veteran denied any current
physical impairment at those times. Such denials by the
veteran go against what he currently states-that he had back
problems during the time period that he worked for the
Muskogee VA Medical Center. The Board gives the statements
made by the veteran in 1979 and 1982 more probative value
than his current statements. First, his denials of any
current physical impairment were made contemporaneously to
his signing the documents, as opposed to current statements
made 20 years after the signing of the documents. Second,
such statements were made prior to the veteran filing a claim
for monetary benefits for such disorder. The Board has no
reason to doubt the credibility of the statements made by the
veteran in the 1979 and 1982 VA documents. Thus, for these
reasons, the Board will accord more probative value to the
statements he made in 1979 and 1982.
The first showing of a low back disorder was in 1992, which
is 16 years following the veteran's discharge from service.
The Board notes that the 1992 clinical findings show that an
x-ray taken at that time of the lumbar spine was negative.
Again, the veteran claims that he was seen between 1982 and
1991 for back pain while working for the VA Medical Center in
Iowa City. The VA employee medical records do not
substantiate his allegation for such treatment. Thus, there
is a lack of continuity of symptomatology of back pain
between the December 1974 injury and the 1992 complaint of
back pain. When the veteran has been diagnosed with a low
back disorder, no medical professional has attributed the
diagnosis to the injury the veteran sustained in service.
Thus, there is also a lack of competent evidence of a nexus
between the post service diagnoses of degenerative joint
disease, degenerative disc disease, and spondylosis, and
service, to include manifestations of degenerative joint
disease to a compensable degree within one year following the
veteran's discharge from service. As stated above, the VA
employee medical records show that an x-ray taken of the
veteran's lumbar spine in 1992 was negative. Therefore,
arthritis, or degenerative joint disease, had not been shown
within 16 years of the veteran's discharge from service.
While the veteran has attributed the current low back
disorder to service, he does not have the requisite knowledge
of medical principles that would permit him to render an
opinion regarding matters involving a medical diagnosis. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
The Board finds that the veteran's claim for service
connection for a low back disorder cannot be granted because
the veteran has not brought forth competent evidence of a
nexus between the current low back disorder and service, to
include manifestations of such to a compensable degree within
one year following the veteran's discharge from service.
Again, there is a 16-year gap in time between the veteran's
discharge from service and the first diagnosis of a low back
disorder. Accordingly, for the reasons stated above, the
Board finds that the preponderance of the evidence is against
the claim for service connection for a low back disorder, and
there is no doubt to be resolved. See Gilbert, 1 Vet.
App. at 55.
2. Psychiatric disorder
The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against the
grant of service connection for a psychiatric disorder. The
Board notes that initially, the veteran admitted that his
psychiatric disorder did not begin until 1988; however, he
has subsequently attributed his current psychiatric disorder
to service, but continued to admit he had no psychiatric
complaints during service. At the September 2000 hearing,
the veteran stated that he had attempted suicide prior to
entering service, which would imply that he may have had a
psychiatric disorder prior to entering service. However, the
Board finds that the presumption of soundness has not been
rebutted. Specifically, at the time of the veteran's
entrance into service, psychiatric evaluation was normal.
Thus, there was no finding related to a psychiatric disorder,
and therefore, the veteran is entitled to the presumption of
soundness. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R.
§ 3.304(b) (2001); Bagby v. Derwinski, 1 Vet. App. 225, 227
(1991) (a veteran is presumed to be in sound condition except
for defects noted on examination reports when examined and
accepted for service).
The service medical records are silent for any treatment for
or diagnosis of a psychiatric disorder. The separation
examination shows a normal psychiatric evaluation.
Psychiatric evaluations in September 1979 and January 1982
were normal. The first clinical showing of a psychiatric
disorder is 1996, which is 20 years following the veteran's
discharge from service. As stated above, the veteran has
asserted that he first had psychiatric complaints in 1988,
which is evidence against a finding that the current
psychiatric disorder is related to service because history he
has provided pertinent to his psychiatric difficulties has
not been consistent. Regardless, there is a lack of
continuity of symptomatology of a psychiatric disorder
between the time the veteran got out of service in 1976, to
include the one-year period following his discharge from
service, and the post service diagnoses of major depressive
disorder and schizophrenia. In the 1996 VA hospitalization
summary reports, the examiners attributed the veteran's
current psychiatric disorder to post service events. Thus,
there is a lack of competent evidence of a nexus between the
post service psychiatric disorder and service.
While the veteran has attributed the current psychiatric
disorder to service, he does not have the requisite knowledge
of medical principles that would permit him to render an
opinion regarding matters involving a medical diagnosis. See
Espiritu, 2 Vet. App. at 494.
The Board finds that the veteran's claim for service
connection for a psychiatric disorder cannot be granted
because the veteran has not brought forth competent evidence
of a nexus between the current diagnosis of major depressive
disorder and schizophrenia and service, to include
manifestations of such to a compensable degree within one
year following the veteran's discharge from service. Again,
there is a 20-year gap in time between the veteran's
discharge from service and the first diagnosis of a
psychiatric disorder. Accordingly, for the reasons stated
above, the Board finds that the preponderance of the evidence
is against the claim for service connection for a psychiatric
disorder, and there is no doubt to be resolved. See Gilbert,
1 Vet. App. at 55.
Also, the Board is aware that the veteran was diagnosed with
several personality disorders, such as obsessive compulsive
disorder, schizoid personality disorder, and passive
aggressive personality disorder; however, service connection
cannot be granted for such, as they are not diseases or
injuries within the meaning of applicable legislation
providing compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9,
4.127 (2003).
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for a low back disorder is denied.
Service connection for a psychiatric disorder, to include
major depressive disorder and schizophrenia, is denied.
___________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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